Attorneys wrap 9-day hearing in Molly Midyette's bid for new trial

Boulder judge takes case under advisement, will issue written ruling

Jane Bowers hugs her daughter after a hearing Thursday at the Boulder County Justice Center. Molly Bowers, formerly Midyette, is asking for a new trial in the death of her son. (PAUL AIKEN / CAMERA)

A hearing to determine whether Molly Midyette should get a new trial in the 2006 death of her 10-week-old son closed Thursday with her appeals attorney arguing that her trial attorney ignored signs of abuse that should have led him to present a very different defense.

"He was on notice after St. Patrick's Day as to this battered woman's issue," defense attorney Alison Ruttenberg said in her closing arguments, referring to a fight after which Molly Midyette moved out of the home she shared with her husband. "He was aware of the issues with Alex (Midyette). He pooh-poohed it and told her to go home and eat lasagna."

Prosecutors, in turn, told Boulder District Judge Lael Montgomery that the abuse claims, which only came out after her conviction and which have become more detailed over time, have no credibility.

And even if Molly Midyette was abused, Jefferson County Chief Deputy District Attorney Donna Reed said in closing arguments, and if even if battered woman syndrome affects competency, Midyette showed no signs of being incompetent to assist in her own defense, and she received effective counsel.

"You are not entitled to a perfect trial," Reed said. "Ineffective counsel isn't based on whether you win or lose the case."

Montgomery took the case under advisement and said she would issue a written ruling. She gave no indication of when she planned to rule.

Molly Midyette, now divorced and using her maiden name of Molly Bowers, is serving a 16-year sentence after a Boulder County jury found her guilty in 2007 of child abuse resulting in death for not getting help in time to save baby Jason.

Alex Midyette, who was accused of causing the fatal injuries, was convicted of a lesser charge in a separate trial. He is also serving a 16-year sentence and is appealing his conviction.

Special prosecutors from Jeffco spent much of the nine-day hearing attacking Molly Midyette's credibility. They brought in the girlfriend of a close friend of Alex Midyette to offer a sexually explicit and consensual version of events between the two couples at a Denver hotel in 2007 that contradicted Molly Midyette's description of being humiliated on her wedding anniversary and thrown against a wall.

And they brought in a former coworker and current employee of her father-in-law, J. Nold Midyette, to say the two had a loving relationship and that Molly Midyette used cocaine, information the woman didn't provide to investigators during the original trial and that Molly Midyette denied.

They went after differences in the testimony Molly Midyette gave in court, in meetings with prosecutors after her conviction and in interviews with Lenore Walker, the psychologist who diagnosed her with battered woman syndrome.

The most serious physical violence described by Molly Midyette -- being thrown against a wall and pulled down the stairs and having her face rubbed in the carpet -- never came up until she took the stand in the hearing.

And prosecutors played a recording of a jail conversation between Alex and Molly Midyette shortly before she met with Walker for the first time and told her that her husband had threatened to withhold photos of her dead son.

Ruttenberg said Midyette's inability to tell people about the extent of the abuse and control is evidence of the battered woman syndrome that made it impossible for her to assist in her own defense.

The request for a new trial rests on three arguments -- that Midyette was legally incompetent, that her trial attorney, Craig Truman, failed to recognize it and that he provided ineffective counsel.

Truman said he didn't raise many of the unsavory aspects of the Midyettes' relationship at trial because he thought jurors would wonder why she let a man with a violent temper take care of her fragile baby. He said he tried to get Midyette to leave her husband.

Truman said he believes her claims of abuse, but he didn't know how bad the situation was until after the trial. He said he even called domestic violence shelters on her behalf, a claim Molly Midyette denies and that is not reflected in his case notes.

Ruttenberg said Truman should have called an expert on battered woman syndrome during the trial so that jurors could place Midyette's actions and statements in context.

"Craig Truman and the prosecutors can't have it both ways," Ruttenberg said. "He can't be so concerned he called a domestic violence shelter and yet totally let it drop."

The defense said Truman further failed his client by allowing her to be tried before her husband was; by not presenting more evidence to bolster her claim that she had no way to know the baby was injured; and by sharing her confidences with Paul McCormick, Alex Midyette's attorney.

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